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Poster: serenity34957 Date: Nov 24, 2005 3:29am
Forum: etree Subject: Federal Anti-Bootleg Statute

tjfield, I am a law school grad who know a little bit about copyright law and I have some doubts as to whether the band has any enforcable rights to the audience recordings at this time. This is a very murky area of the law is seems. For instance, see this:

NY JUDGE STRIKES DOWN ANTI-BOOTLEG LAW September 24, 2004

NEW YORK — A federal judge Friday struck down a 1994 law banning the sale of bootleg recordings of live music, ruling the law unfairly grants "seemingly perpetual protection" to the original performances.
U.S. District Judge Harold Baer Jr. dismissed a federal indictment of Jean Martignon, who runs a Manhattan mail-order and Internet business that sells bootleg recordings.

Baer found the bootleg law was written by Congress in the spirit of federal copyright law, which protects writing for a fixed period of time — typically for the life of the author and 70 years after the author's death.

But the judge said the bootleg law, which was passed "primarily to cloak artists with copyright protection," could not stand because it places no time limit on the ban.

Baer also noted that copyright law protects "fixed" works — such as books or recorded music releases — while bootlegs, by definition, are of live performances.


-----------

The Constitutional provisons protecting copyrights were so lacking in their protections for live recordings that Congress passed the Federal Anti-Bootleg Statute. However, that law was held to be unconstitutional as the article about indicates. Again, I'm not an expert and don't have time to do all the research necessary at this time but it seems from what I know so far that legally, the audience recordings - and perhaps even the soundboards, are NOT protected under current law.

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Poster: HighNRGOne Date: Nov 25, 2005 4:38pm
Forum: etree Subject: They Win

They Win.

This post was modified by HighNRGOne on 2005-11-26 00:38:05

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Poster: Administrator, Curator, or StaffDiana Hamilton Date: Nov 24, 2005 6:34am
Forum: etree Subject: Re: Pointer to GD permission statement

GD's longstanding permission to this non-profit is, in my view, NON-REVOCABLE....just as the GD could not revoke any other type of donation to ARCHIVE.ORG two years after the fact.

Your understanding appears to be incomplete. Here is a copy of the permission (I won't quote the other copy on this site because I don't know if the url will change under the move out of LMA before long):
http://userpages.umbc.edu/~hamilton/gdnotice.txt

Here's one part BTW:
"We reserve the ability to withdraw our sanction of non-commercial digital
music should circumstances arise that compromise our ability to protect
and steward the integrity of our work."

Further, I don't think the GD uploaded any of the filesets to this site. Fans who happened to have filesets did.

This post was modified by Diana Hamilton on 2005-11-24 14:34:37

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Poster: HighNRGOne Date: Nov 25, 2005 4:39pm
Forum: etree Subject: They Win

They Win.

This post was modified by HighNRGOne on 2005-11-26 00:39:09

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Poster: Liamfinnegan Date: Nov 24, 2005 8:21am
Forum: etree Subject: Re: Pointer to GD permission statement

HighNRGOne is on the right track- while I disagree with the overall posture of this person, I do agree that the Grateful Dead are going to have a problem here.

To answer the posting of the GD policy- because they say it, does not make it legal. A statement that they retain the right to withdraw the material must square with Title 17 and any case law developed on copyright/intellectual property.

Typically an artist must file a copyright, and in the past, many works went into the public domain this way by default. Congress tried to tighten this up, and I know there are exclusions to the registration requirement.

However, what we have with the soundboards and trading may fall unto the "Fair Use Doctrine". I will not go into the whole thing here, as you can look it up under Title 17 of the federal code, but there is a four prong test in determining what constitutes fair use. I am sure the judge in the decision that was captured in the article that was posted here used this prong test in making the decision about the bootlegger.

The most fundamental legal question is this: Have these soundboards and audience tapes passed into the public domain through the Dead's policy? Have they forfeited the right to any copyright they may claim? A disclaimer in the form of an official policy statement may not rise to the level of positing copyright protection.

It is a basic concept in copyright law that an artist of any kind can lose that copyright if they do not vigorously defend it.

I was thinking earlier today that the boards may have been pulled because an action has been filed against someone who was selling these boards at a profit, and the answer to the complaint probably pointed to this archive and others as proof positive that the material had passed into the public domain.

Or it may be that a complaint is about to be filed, and the boards were removed to avoid the affirmative defense the infringer might give.

I am still doing the research on this. I see now a few people may be able to help me out. I have my Title 17 in hand and will be combing through it.

I know this area of the law well, as a results of personal experience- I am not a lawyer. But 10 years ago I pulled a rabbit out of a hat and got a federal judge in philadelphia to agree with me as I was defending someone who had been sued fir infringement. My friend was making copies of the Narcotics Anonymous basic text- an early version of that book (which was revised many times). My friend was an NA member, but the NA world service sued him any way for printing and giving out the books.

To make a long story short, I persuaded the judge that the actions we were taking constituted legal actions under Limited Public Domain- no one was making a profit, and the greater good of society was being served- addicts who were getting clean were getting free books from us.

An argument might be made that these boards being on the archive are serving the public benefit, bringing so much joy to the world. If someone were to file this action and try to get a TI, we can all send in amicus briefs as to what affect this musis has on us besides just passing the time

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Poster: tigerbolt Date: Nov 24, 2005 9:38am
Forum: etree Subject: Re: Pointer to GD permission statement

I hope you got a lot of money to fight the the lawyers for the dead.The dead have always been a business/nothing comes for free.If this keeps up they might shut down everything but if your going to do this can you please wait until they release 8-27-72 dvd and cd package,i've been waiting for that for awhile.Whining boy got no place to go ain't that a shame.

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Poster: HighNRGOne Date: Nov 25, 2005 4:39pm
Forum: etree Subject: They Win.

They Win.

This post was modified by HighNRGOne on 2005-11-26 00:39:55

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Poster: SavoyTruffle Date: Nov 24, 2005 4:35pm
Forum: etree Subject: Re: Pointer to GD permission statement

It doesnt seem as that this is the best approach here. Why dont you take a breath and sleep on this idea. While some new info may come out that you don't know about yet. It's only been 2 or 3 days. Enjoy what is still around for the time being.

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Poster: Administrator, Curator, or StaffDiana Hamilton Date: Nov 24, 2005 11:02pm
Forum: etree Subject: Re: more national exposure for lawyers- a good thing?

they will in short either have to destroy the GD archive or make it publicly available as before

Sigh, again images of burning come to mind:
http://www.archive.org/iathreads/post-view.php?id=47932

they cannot be a private commercial repository for anyone and get away with non-profit protections under federal tax law.

As I've said in other replies, no commercial entity will be taking these filesets from the site for their use. The now "dark archive" material will be stored at the Archive, as archive.org does with certain other materials it receives (including lots of non-music- like software), that aren't yet made public.

The difference here is that it won't be totally unlistenable, since there will still be a public Grateful Dead collection here with some streaming music, ~1000 items' worth.

As I've said in other replies, the collection of GD filesets here was actually designed as an offsite backup of an archive that was gathered by diligent fans at another site. That mission was a success, especially given that the other site (Tol) later went down. It wasn't even envisioned to be public at first, it just worked out that way, for a while, to the happiness of other fans.

legal team just today who would LOVE to take this case to the courts and the national media. They have every button to push and the hard-ons to do it, if only for the national exposure it will bring to their legal practices. Plus it's just a good fight against the dark side.

Sigh, the irony... insert evil lawyer joke here?

From Brewster and Matt's remarks:
please channel reactions in ways that you genuinely think will be productive. If we keep the bigger picture in mind that there are many experiments going on right now, and experiments working well, we can build on the momentum that tape trading started decades ago.

How productive are thoughts of visiting courthouses, against archive.org, over something like this? ...Besides just being productive of er, "hard-ons" (ew, I'd rather not see that kind of "exposure")?

This post was modified by Diana Hamilton on 2005-11-25 07:02:00

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Poster: HighNRGOne Date: Nov 25, 2005 4:40pm
Forum: etree Subject: They Win

They Win.

This post was modified by HighNRGOne on 2005-11-26 00:40:39

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Poster: Administrator, Curator, or StaffDiana Hamilton Date: Nov 25, 2005 2:29am
Forum: etree Subject: Re: more national exposure for lawyers- a good thing?

I am not buying your motives here, nor is anyone else who trusted you to serve the public interest

I get the strong impression from this that you apparently haven't read any other posts here, other than your own?

This post was modified by Diana Hamilton on 2005-11-25 10:29:43

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Poster: HighNRGOne Date: Nov 25, 2005 4:41pm
Forum: etree Subject: They Win

They Win.

This post was modified by HighNRGOne on 2005-11-26 00:41:10

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Poster: Administrator, Curator, or StaffDiana Hamilton Date: Nov 26, 2005 6:16am
Forum: etree Subject: Re: Respect, revisited

Conspiracy theories aside...

This collection is set up on the basis of respect. Out of respect, we give others the option of having their performances available here- or not (opt-in/opt-out). It's no secret plan to do so, since we post about that all the time. For example, here's a recent thread about it:
http://www.archive.org/iathreads/post-view.php?id=42966
You can see some FAQs here about it too, just hit the menu bar above.

Respect, especially accorded by working with folks instead of against them, is the same key to the recent Open Content Alliance affiliated with this site,
http://www.archive.org/iathreads/post-view.php?id=44311
It seems to have gotten fairly favorable response due to its simple "respect" as opposed to "legal challenge" approach.

[11/26, snip my remark about observing someone else's patron id in use]

This post was modified by Diana Hamilton on 2005-11-25 13:39:41

This post was modified by Diana Hamilton on 2005-11-26 14:16:30

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Poster: HighNRGOne Date: Nov 25, 2005 4:42pm
Forum: etree Subject: They Win.

They Win.

This post was modified by HighNRGOne on 2005-11-26 00:42:02

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Poster: direwolf0701 Date: Nov 25, 2005 6:26am
Forum: etree Subject: Re: Respect, revisited

chill out man - this aint the end of the world. so you are a lawyer - congrats! go call Oliver Stone and maybe the two of you can make a movie about why the GD was pulled from the site. just don't give me that attorney crap - come froma family of them - not impressive.

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Poster: HighNRGOne Date: Nov 25, 2005 4:42pm
Forum: etree Subject: They Win.

They Win.

This post was modified by HighNRGOne on 2005-11-26 00:42:41

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Poster: Administrator, Curator, or StaffDiana Hamilton Date: Nov 25, 2005 10:57pm
Forum: etree Subject: Re: Respect, revisited

Read what this has done to the trust and spirit of many people who trusted Archive, from uploaders to downloaders.

From what I've seen of the response so far of actual uploaders of the particular filesets at issue, I haven't observed any degradation of their trust or spirit with respect to the Archive. (Charlie, Matt, Obie or any other GDIAP guys, wanna chime in here? Or maybe don't waste your time on it after all guys.)

I grant you that the reaction of downloaders has been spectacularly varied here.

If you can't accept at least one voice attempting to keep this organization honest, ON ALL FRONTS, then don't read any further.... It is truly revealing that no one wants to answer the substance of anything written here..

[That apparent substance is now wiped by original poster, making my response here moot.]

This post was modified by Diana Hamilton on 2005-11-26 06:57:44

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Poster: HighNRGOne Date: Nov 25, 2005 4:45pm
Forum: etree Subject: They Win.

They Win.

This post was modified by HighNRGOne on 2005-11-26 00:45:32

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Poster: direwolf0701 Date: Nov 25, 2005 6:54am
Forum: etree Subject: Re: Respect, revisited

i thought it was impressvie too - thanks man ;)

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Poster: HighNRGOne Date: Nov 25, 2005 4:43pm
Forum: etree Subject: They Win.

They Win.

This post was modified by HighNRGOne on 2005-11-26 00:43:17

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Poster: Administrator, Curator, or StaffDiana Hamilton Date: Nov 25, 2005 6:30am
Forum: etree Subject: Re: Respect, revisited

We've had past instances of unpleasant people playing with multiple ids; thanks for clarification.

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Poster: HighNRGOne Date: Nov 26, 2005 6:30am
Forum: etree Subject: Thanks

This post was modified by HighNRGOne on 2005-11-26 11:16:42

This post was modified by HighNRGOne on 2005-11-26 14:30:45

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Poster: Administrator, Curator, or StaffDiana Hamilton Date: Nov 26, 2005 3:16am
Forum: etree Subject: Re: Respect, revisited

Let's take this to email. dianashamiltongmail

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Poster: Fishead Date: Nov 25, 2005 4:44am
Forum: etree Subject: Re: more national exposure for lawyers- a good thing?

since when did the archive ever promise that dead shows would be avail to download forever?? the archive i would think has every right whether to allow you or i to download them . nobody made anyone upload shows to the archive . people that upload show do so by their own choice.why are u being such a jerk towards diana ?

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Poster: HighNRGOne Date: Nov 25, 2005 4:46pm
Forum: etree Subject: They Win.

They Win.

This post was modified by HighNRGOne on 2005-11-26 00:46:15

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Poster: direwolf0701 Date: Nov 25, 2005 7:08am
Forum: etree Subject: Re: more national exposure for lawyers- a good thing?

My God - the Archive bans [a past unpleasant person] for being a admittedly offensive goof (god knows i couldn't stand him) - but to let this "lawyer"... keep posting...... give me a break

This post was modified by Diana Hamilton on 2005-11-25 14:39:18

This post was modified by Diana Hamilton on 2005-11-25 15:08:48

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Poster: Administrator, Curator, or StaffDiana Hamilton Date: Nov 25, 2005 6:39am
Forum: etree Subject: Re: more national exposure for lawyers- a good thing?

Shh! No evocations please, you know it's gonna get stranger. :P

...In fact I tweaked that just to be safe (sorry!).

This post was modified by Diana Hamilton on 2005-11-25 14:39:56

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Poster: HighNRGOne Date: Nov 25, 2005 4:46pm
Forum: etree Subject: They Win.

They Win.

This post was modified by HighNRGOne on 2005-11-26 00:46:51

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Poster: Administrator, Curator, or StaffDiana Hamilton Date: Nov 25, 2005 7:09am
Forum: etree Subject: Re: more national exposure for lawyers- a good thing?

My apologies, I actually meant to do that along with the other name and missed it. Done now.

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Poster: HighNRGOne Date: Nov 25, 2005 10:18am
Forum: etree Subject: Re: more national exposure for lawyers- a good thing?

Diana, would you be so kind as to remove the reference to the other screen name somewhere in this thread....it is not associated with my personal views or postings and, as I said, was mistakenly posted with while using a different computer. Thanks for your diligence in this charged environment.

This post was modified by HighNRGOne on 2005-11-25 18:18:08

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Poster: direwolf0701 Date: Nov 25, 2005 6:58am
Forum: etree Subject: Re: more national exposure for lawyers- a good thing?

lmao - "a past unpleasant person"
nice edit there Diana :) had an oops there with that evocation (me bad)
happy holidays :)

This post was modified by direwolf0701 on 2005-11-25 14:58:57

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Poster: dr. flashback Date: Nov 25, 2005 7:48am
Forum: etree Subject: Re: Pointer to GD permission statement

1. The President lies about going to war in Iraq, and we chill.
2. Two national elections are stolen through Diebold computerized voting machines in OH and FL, and we chill.
3. The Patriot Act is passed which allows the cops to bust down your door with no search warrent - and we chill.
4. The cops start putting video cameras on street corners to monitor us - and we chill.
5. Sony starts putting (stopped for now) software onto its music CD's which invade your privacy and prevent copying - and we chill.

You know what? I'm really getting tired of "chillin". Sometimes, you have to stand up and take action against what you think is wrong - on PRINCIPLE, even if you have nothing to personally gain from it.
You may not agree with what HighRGOne is doing, but at least give him some credit for doing something in these days of apathy and cynicism. His personal style seems a little (??) aggressive, but then if he was my lawyer - that's exactly what I'd want!
I don't mean to attack anyone personally here, but the rationale of "please be patient, we're trying some experiments" is patently, bullsh*t. This only means they haven't yet figured out how and how much to charge us for the shows yet. Those of you who think that "experiments" means they might go back to allowing some free music - well I've got a bridge I'd like to sell you. If I'm wrong - I'll happily admit it. :-)
BTW - I have many close friends inside the Nashville music industry, including performers - so I think I'm qualified to say I know something about the music business. And it's dog eat dog, folks. Worse than you can imagine, esp. now with CD sales down in general. Greed, payoffs, shady deals, hype, cutthroat attitudes, phony people. It's "normal" in the music biz, cause the payoffs are soooo huge, the risks so great. I'm not talking about the artists, now. I'm talking about the BIZ people.
So in that way, I am not in the least surprised that the Dead's lawyers (and I think common sense and time will prove this to be obviously the source) have decided on this policy move.

Jeeez, I'm a peaceful guy and I don't like conflicts, much less seeing my music loving community attack each other. But from strictly an intellectual level - I WOULD like to see some kind of legal action over this take place. Because, no matter who "won" it might finally clear up once and for all this very muddy, ill-defined and confusing situation. Even if my side lost, I'd be glad to know that the issue was resolved on the GD bootlegs questions. Such as -
1. Why is it okay for some websites to host GD soundboards, but not others?
2. Why are AUD recordings now illegal?
3. If I can sell my old album copy of Wake of the Flood on E-bay (which I legally can of course) - then can I also sell my unreleased bootleg of GD 11/7/71 ??

All of these issues and more, I believe, would be forced to be legally answered in a court case. Because, cynic that I am, I don't think they'll ever be fully answered otherwise.

BTW - the latest count on the petition was close to 1,300. Some of you may scoff at this idea, but if I was a business person, and I got over 1,000 letters in one day in complaints about my products - I'd be a fool not to pay attention.

And Diana, let me say you're doing a great job, even if I don't always agree. How come you get the lucky job of moderating all this ruckus?? Don't you get any help?? :))

Peace, folks. Once the military draft starts again, we'll all realize we're on the same side very soon!! Let's attack IDEAS and POLICIES, but not each other, huh?
Dr. Flashback

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Poster: Carlo Marx Date: Nov 25, 2005 12:42pm
Forum: etree Subject: Re: Pointer to GD permission statement

I share the frustrations and sadness expressed. Rave on! What was here was magnificent, and it’s a shame to see it go. But we must face facts. It’s gone and it ain’t comin’ back. Not here at least.

Let’s salute LMA, which did a fabulous job hosting the shows. Beautifully organized, very user friendly. A real pleasure to use. Bravo! What was here should be the model for all future versions.

Any future version is going to cost us. But there’s room, at least for the moment, for hope.

First of all, at GDP there are folks who care deeply about the music, understand the community and what it means. I guarantee David Lemieux, for one, understands the point of all this. LMA, for all its virtues, never wanted to be a Grateful Dead site.

Second, the vault’s recordings are much better then those posted here and elsewhere. This was brought home forcefully by the Fillmore box. It’s stunning. You can hear deeper into the music than ever before.

If GDP were to open the entire vault, with LMA style formatting, at a reasonable cost, we could be better off than ever before.

Reasonable cost? Aye, there’s the rub. ‘Reasonable’ is not $0.99 per song, and it’s not $14 per downloaded CD. The price needs to be low enough so that most serious scholars can afford to hear the depth and breadth of the Dead’s achievement over many shows and multiple years.

Keep up the pressure, but don’t lose hope.

The future is elsewhere. See you there.

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Poster: Administrator, Curator, or StaffDiana Hamilton Date: Nov 24, 2005 10:47am
Forum: etree Subject: Re: Sue sews whose socks?

Hm, what a "chilling effect" I get from reading the sort of talk in this thread branch. :P

If I were a band thinking about going trade-friendly, what would I be thinking if I ran across this? (Sadly I fear the response from some Heads may be, "But we're not thinking about *other* bands, just about the Grateful Dead!")

This post was modified by Diana Hamilton on 2005-11-24 18:47:56

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Poster: Fishead Date: Nov 24, 2005 10:38pm
Forum: etree Subject: Re: Sue sews whose socks?

diana , its a real shame that some heads here are missing the big picture here with the archive site. i guess they dont realize more harm than good could come out of this from all the bashing and harsh negativity thats being posted here.
you guys are doing whats right and are respecting the wishes of the grateful dead. what some here are saying about the archive is ridicoulous.
i do appreciate the way the archive is handling this situation . and a big thanks to all the great other bands you have here !

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Poster: Administrator, Curator, or StaffDiana Hamilton Date: Nov 24, 2005 10:47pm
Forum: etree Subject: Re: Sue sews whose socks?

i do appreciate the way the archive is handling this situation

Thanks! We're just trying to make the best of what we have to work with here.

and a big thanks to all the great other bands you have here !

Right on! It's too bad the current flap is distracting some deserved attention from them. I received a few new band activations to set up for instance, and haven't even been able to get to them yet because of the attention required for just this 1 other band.

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Poster: dr. flashback Date: Nov 24, 2005 12:27pm
Forum: etree Subject: Re: Pointer to GD permission statement

Hey Liam,
Leave it to an Irishman to come up with a good fight!!
I am excited by what you've written. While not a lawyer, you sure know your stuff. I too have talked to a lawyer friend of mine - and while copyright law isn't his domain, he agrees that the specific legal argument that the Dead "own" these non-released bootlegs is VERY iffy and probably wouldn't stand in court.
The other issues/reasons you suggest as to why the shows have been pulled are more speculative of course. We just don't know.
Could some Deadhead lawyer legally force the GDP to let us have our bootlegs back? A nice fantasy - not likely??!!
I love a good legal fight, especially when the underdogs (us) are the good guys. I'll be watching these threads to see what develops.
Thanks again for your informed comments. The more we examine this policy change - the more it stinks, no?
Dr. Flashback

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Poster: DisguisedAsASquirrel Date: Nov 24, 2005 10:31am
Forum: etree Subject: Re: Pointer to GD permission statement

Diana, I do respect you and this website, but the posts below do seem to have greater weight than what you've cited from the GD. Is there anything more you can say about this? Is there something else going on?

Does this mean they'll be charing us to access their archives in the near future, thereby cutting off any claim you/we have to this "public domain" material?

Oh, and, seriously, you've done an excellent job of handling all of this rage and piss and vinegar.

I, for one, am thankful that I have had a chance in my short 31 years to enjoy this band, this community and this movement of music and kindness in the many spelndored ways I have...will have.

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Poster: Administrator, Curator, or StaffDiana Hamilton Date: Nov 24, 2005 10:45am
Forum: etree Subject: Re: Pointer to GD permission statement

the posts below

Given the current mess "below" in the messageboard, you'll have to cite specific urls, sorry. There have been at least a few hundred by now.

This post was modified by Diana Hamilton on 2005-11-24 18:45:27

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Poster: tigerbolt Date: Nov 24, 2005 6:20am
Forum: etree Subject: Re: Federal Anti-Bootleg Statute

the dead have stated before that sounboards belong to them.go to gdlive to get soundboards for now.

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Poster: ReddyKillowatt Date: Nov 24, 2005 6:34am
Forum: etree Subject: Re: Federal Anti-Bootleg Statute

I really miss the dead shows that this site had. Not just shows you can buy on the Dick's Picks cd set, but shows that you couldn't find on any cd anywhere else. I'm really going to miss those rare hard-to-find shows.